Post by Sapphire Capital on Oct 29, 2008 19:54:57 GMT 4
Rethinking Contract Practice and Law in Japan
John Owen Haley
Washington University School of Law
Washington U. School of Law Working Paper No. 08-09-01
Abstract:
Legal scholars on both sides of the Pacific have long tended to view Japanese and U.S. contract practices from the perspectives initially suggested by Takeyoshi Kawashima and Stewart Macaulay. In separate seminal works published in the early 1960s both scholars argued that avoidance of legally binding agreements represented the prevailing pattern in business transactions. Their work set the agenda for subsequent research on contract practices in Japan, which has emphasized Japanese and U.S. convergence. This paper reconsiders the arguments made by Kawashima and Macaulay in light of a "Japanese advantage" in terms of both the predictability of judicial outcomes as well as the formal and informal enforceability of ex ante contractual commitments resulting from judge-made rules limit excuse of non-performance as a result of unforeseen supervening events as well as unilateral termination pursuant to contract terms. The paper concludes by rejecting the notion of convergence while reaffirming both Kawashima and Macaulay. What they observed, it is argued, were similarities in outcome produced by very different underlying conditions and causes.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1283989
John Owen Haley
Washington University School of Law
Washington U. School of Law Working Paper No. 08-09-01
Abstract:
Legal scholars on both sides of the Pacific have long tended to view Japanese and U.S. contract practices from the perspectives initially suggested by Takeyoshi Kawashima and Stewart Macaulay. In separate seminal works published in the early 1960s both scholars argued that avoidance of legally binding agreements represented the prevailing pattern in business transactions. Their work set the agenda for subsequent research on contract practices in Japan, which has emphasized Japanese and U.S. convergence. This paper reconsiders the arguments made by Kawashima and Macaulay in light of a "Japanese advantage" in terms of both the predictability of judicial outcomes as well as the formal and informal enforceability of ex ante contractual commitments resulting from judge-made rules limit excuse of non-performance as a result of unforeseen supervening events as well as unilateral termination pursuant to contract terms. The paper concludes by rejecting the notion of convergence while reaffirming both Kawashima and Macaulay. What they observed, it is argued, were similarities in outcome produced by very different underlying conditions and causes.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1283989